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Applying for divorce

Catherine Henry Lawyers
Catherine Henry Lawyers

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Applying for divorce

Few of life’s challenges are more stressful than the breakdown of a marriage.

Australia’s divorce laws, set out in the Family Law Act, operate on a ‘no fault’ system. You don’t need to show any wrong doing to get divorced. The only ground to be proven when applying for divorce is that the marriage has irretrievably broken down. This is established by you and your spouse having been separated for at least 12 months. A divorce order won’t be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. If you have been separated but living under the same roof you have separated for the purposes of gaining a divorce. If you separate, and later resume cohabitation but separate again within 3 months, and then continue to live separately and apart, the two periods of separation can be added together to form the necessary 12 months of separation.

Children and divorce

If there are children under 18 the divorce order does not take effect unless the court declares that it is satisfied:

  • that there are proper arrangements in place for the care of the children; or
  • there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that proper arrangements are in place for the care of the children

Applying for divorce orders

You can apply to the Court for a Divorce either jointly with your spouse, or separately. The Court will grant a Divorce Order once satisfied that the necessary requirements have been met. In most cases the Divorce Order will become final 1 month and 1 day following the making of this order. Either party is free to re-marry at this point. 

Do I have to attend Court?

There is no requirement for you to attend Court for the making of the Divorce Order if you do not have children under the age of 18, or if you jointly apply for the divorce. You will need to attend Court if you are making a sole application for divorce and you have children under the age of 18.

Divorce and Property Settlement

You do not have to be divorced to have a property settlement. If you do get divorced you have one year from the date that the divorce order takes effect to apply to the court for a property settlement. Outside of this period you need the court’s permission to apply for property settlement. You cannot assume that the court will give its permission.

*This information is supplied as general advice only. For expert advice relating to your specific family law issue, contact one of our experienced and professional family law solicitors.

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